Post Irma revisited: employers are breaking the law
PHILIPSBURG — The coronavirus lockdown has led to a wave of layoffs or salary deductions. “This is a similar situation to Hurricane Irma, when many employers did not pay their employees. Employees who brought their case to court were proven right,” says attorney Cor Merx. He advises, “Take advantage of the time you have now to write a letter to your employer.”
An employment contract is binding: both the employee and the employer must adhere to the agreements made. This contract cannot be terminated unilaterally unless there is an “urgent reason” that is “promptly” communicated so that the employee can defend against it. In some cases, the employer will invoke ‘force majeure’. It is too early for this pending government support for businesses. Companies that ask the government for compensation for continued payment of 80 or 90 percent of the wages cannot at this stage fire their employees or reduce the salary without the employee’s consent.
Cor Merx: “The question is: whose risk is the loss of business income due to the corona pandemic? Is that for the mother with two children who is already struggling financially anyway and whose employer says: I don’t bear the risk, you wear it, I reduce your salary from $1000 to $600? The judge is very clear about this: if someone has to bear the risk, it is the employer.”
The corona epidemic falls into the category of natural disaster, Merx says. “After the hurricane there were employers who said, “There are no cruise ships, so I can’t afford to pay my staff. This is not how it works. Imagine, if ten cruise ships arrive one day, will the employer then say to his workers: “Now you will each receive $200 extra.” Surely not, the employer will take the profit from his company. He will also have to bear the loss. That is the risk of doing business. A good and responsible businessman puts money aside for bad times.”
Merx recommends that employees who have received less salary or have not been paid at all write a letter to their employer. “Make sure that you object and urge the employer to comply with the agreements in the employment contract. By law, the employer must continue to pay the full wages. If he doesn’t, send a reminder. Remember, you have the law at your side. Keep all correspondence, both the letters and the answers to them. Those emails serve to substantiate a possible lawsuit.”
An employee’s illness is not a reason for dismissal. If you carry out work for the employer at home and become ill, the employer may not ask what is wrong with you. That falls under privacy. The National Ordinance stipulates that the employee is entitled to compensation in the event of illness, consisting of medical treatment and nursing, and cash benefits. The SZV reimbursement also applies to women who are pregnant or in labor.
If the current situation continues for a long time and the employer can demonstrate that he does not have sufficient financial means to pay his staff, while he cannot count on government support, the employer can invoke force majeure. “In that case, too, the employee must be able to defend himself,” says Merx. “It is up to the judge to determine whether there is indeed force majeure.”
Persons who are in financial difficulties due to an unresolved labor dispute as a result of the corona pandemic and urgently need help, can fill in this form to be eligible for support from the government: http://onlineservices.sintmaartengov.org/covid19/SIAForm.aspx.
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